Chief
District Judge David Nuffer referred this case to Chief
Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B).[1] Before the court are Defendants Keith C.
Barnes, Gary R. Herbert, and Matthew B. Durrant's
(collectively, “Defendants”) Motion to Dismiss
and Memorandum in Support (the “Motion to
Dismiss”), [2] and Plaintiff Terry Prisbrey's
(“Plaintiff” or “Mr. Prisbrey”)
Motion to Amend Complaint (the “Motion to
Amend”).[3] The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to civil
rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will
determine the motions on the basis of the written memoranda.
See DUCivR 7-1(f). For the reasons set forth below,
the court recommends that the Motion to Dismiss be granted,
and the Motion to Amend be denied.

BACKGROUND

Defendant
Keith C. Barnes (“Judge Barnes”) is a Utah Fifth
District Court Judge, who presided over Mr. Prisbrey's
divorce from Tamara Prisbrey in 2013. Mr. Prisbrey brings
suit under 42 U.S.C. § 1983 (“Section
1983”), alleging his constitutional rights were
violated by Judge Barnes' rulings in the divorce, and
seeking monetary damages and an injunction. Mr. Prisbrey also
names Gary R. Herbert, governor of the State of Utah
(“Governor Herbert”) and Matthew B. Durrant,
Chief Justice of the Utah Supreme Court (“Chief Justice
Durrant”) in the complaint (the
“Complaint”).[4] The claims against Governor Herbert and
Chief Justice Durrant appear to stem from their alleged
oversight roles and training responsibilities over state
court judges.

I.
The Complaint

In the
Complaint, Mr. Prisbrey alleges misconduct on the part of
Judge Barnes, including that Judge Barnes:

1. “acted outside of his official capacity” by
receiving testimony from two individuals off the court
record;[5]

2. “should have notified Plaintiff of the verdict or
the content of the verdict” and “should have
instructed [Tamara Prisbrey] on the verdict in a hearing with
both parties present;”[6]

3. “show[ed] bias giv[ing] [Tamara Prisbrey] everything
she wants and denies Plaintiff every time on
everything;”[7]

4. “denied [Mr. Prisbrey] [his] constitutional right to
an interpreter” during a hearing;[8]

5. took “life liberty and pursuit of happiness . . .
from Plaintiff by giving [his] abusive x [sic] wife mineral
rights on both properties this gives her the ability to abuse
[him];”[9]

7. “failed to assess a value to most of the items
awarded to Tamara” Prisbrey;[11] and,

8. “deemed himself an expert appraiser, ” rather
than relying on the appraiser's value;[12]

Allegations
against Governor Herbert in the Complaint include that
Governor Herbert,

1. “is responsible for all these entities and
individuals [sic] training and ensuring they are properly
trained and ensuring the oversite [sic] of these officers and
individuals;”[13] and,

2. “failed to properly train defendants” in the
division of marital assets, in “dealing with
disabilities [and] traumatic brain injuries, ” on
“[narcissistic] personality disorders, ” that
“they must treat both parties as equal not separate
standards for each party, ” and, on various other
issues ranging from filing documents to findings of
fact.[14]

Besides
being named in the caption of the Complaint, Chief Justice
Durrant's name does not appear in the Complaint. It is
unclear to the court whether the allegations of
“fail[ures] to train” in the section captioned
“Additional Allegations of Wrong Doings and
Claims” at the end of the Complaint relate to Chief
Justice Durrant.[15] However, it appears likely to the court
that Mr. Prisbrey, at the very least, intended to include
Chief Justice Durrant in the allegations regarding the
“judicial review bard” organized by the
“supreme court” who, according to the Complaint,
are “over seers [sic] of the judicial review board and
for the training of them.”[16] M r. Prisbrey alleges
that this board has “appointed ones that don't
investigate thoroughly all complaints like [his] so they are
liable for damages and they don't monitor to see if the
judicial review board is doing its job
properly.”[17]

There
are no allegations in the Complaint that either Governor
Herbert or Chief Justice Durrant had any contact with Mr.
Prisbrey, or Judge Barnes, or that they took any actions
directly related to Mr. Prisbrey's divorce.[18]

II.
The Proposed Amended Complaint

Mr.
Prisbrey has also moved the court for leave to amend the
Complaint. The proposed amended complaint (the “Amended
Complaint”)[19] expands the Complaint from sixteen pages
to sixty-eight pages. The Amended Complaint seeks to add
Judge Paul D. Lyman (“Judge Lyman”), the judge to
whom Mr. Prisbrey's divorce case was reassigned after
Judge Barnes recused himself, [20] as a defendant, and the Terry
Prisbrey Trust as a plaintiff.[21]

While
the Amended Complaint is considerably longer, the additional
pages contain substantial argument, but the core allegations
remain largely the same as those raised in the Complaint.
Although the Amended Complaint now names Chief Justice
Durrant, the claims against him and Governor Herbert, just as
in the Complaint, arise out of their alleged supervisory
roles over the judges presiding over Mr. Prisbrey's
divorce, repeating allegations that these defendants failed
to properly train and oversee judges.[22] The Amended
Complaint also alleges that Governor Herbert failed to
enforce or pass laws that would have prevented the alleged
harm done to Mr. Prisbrey.[23]

Similarly,
the claims against Judge Barnes remain largely unchanged. The
Amended Complaint continues to claim harm from Judge
Barnes' decisions in his capacity as a judge, including
that he improperly allowed witness testimony;[24]
“rushed” Mr. Prisbrey to present
evidence;[25] did not properly assess the value of
property given to Tamara Prisbrey; did not equitably divide
property; and gave mineral rights to a “self-admitted
abusive spouse putting [Mr.] Prisbrey in[] harm's way of
abuse, physical, control of [Mr.] Prisbrey,
”[26] failed to notify Mr. Prisbrey of the
verdict, [27] and failed to appoint an
interpreter.[28]

The
claims against Judge Lyman in the Amended Complaint are
similar to those against Judge Barnes. Mr. Prisbrey complains
that Judge Lyman's decisions in his capacity as a judge
violated his civil rights, including that Judge Lyman failed
to appoint an interpreter, [29] denied Mr. Prisbrey's
motion to have property transferred to him;[30] denied a
motion to amend the divorce decree;[31] and “[took]
testimony outside of court.”[32]

In
addition, the Amended Complaint adds claims for (1) a
“failure to investigate allegations of judicial
misconduct, ”[33] (2) violation of Mr. Prisbrey's due
process rights in his divorce case, referred to in the
Amended Complaint as “Count 2, ”[34] (3) breach of
contract, [35] and violation of Title II of the
Americans with Disabilities Act (“ADA”) for
failure to appoint an interpreter.[36]

STANDARD
OF REVIEW

At the
outset, the court recognizes that Mr. Prisbrey is proceeding
pro se.[37] Therefore, the court will
“construe his pleadings liberally and hold the
pleadings to a less stringent standard than formal pleadings
drafted by lawyers.” Riddle v. Mondragon, 83
F.3d 1197, 1202 (10th Cir. 1996) (citations omitted).
However, Mr. Prisbrey's pro se status does not discharge
him from complying with the court's rules and procedures,
and the court will not assume an advocacy role on Mr.
Prisbrey's behalf. See Nielsen v. Price, 17 F.3d
1276, 1277 (10th Cir. 1994) (noting that the Tenth Circuit
“has repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants”
(quotations and citations omitted)); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(“[W]e do not believe it is the proper function of the
district court to assume the role of advocate for the pro se
litigant.”).

In
deciding a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the court presumes the
truth of all well-pleaded facts in the complaint, but need
not consider conclusory allegations. See Tal v.
Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006), cert.
denied, 549 U.S. 1209 (2007). The court is not bound by
a complaint's legal conclusions, deductions, and opinions
couched as facts. See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 565 (2007). Further, although reasonable
inferences must be drawn in the non-moving party's favor,
a complaint will only survive a motion to dismiss if it
contains “enough facts to state a claim to relief that
is plausible on its face.” Id. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).

DISCUSSION

In the
Motion to Dismiss, the Defendants argue that Plaintiff's
claims against Defendants should be dismissed because (1)
Judge Barnes is entitled to absolute judicial immunity for
actions for monetary damages that are judicial in nature; (2)
Section 1983, as amended by the Federal Courts Improvement
Act, bars suits against judges for injunctive relief in these
situations; (3) Governor Herbert and Chief Justice Durrant
are not liable uner the doctrine of respondeat
superior for the constitutional violations of their
subordinates; and (4) the Complaint does not allege any facts
against Chief Justice Durrant which state a claim.

Moreover,
the Defendants argue that Mr. Prisbrey should not be allowed
to amend his complaint because (1) the core allegations of
the Complaint remain the same in the Amended Complaint, and
still fail for the same reasons the Complaint fails; and (2)
the new claims also fail to state a claim upon which relief
can be granted, and therefore amendment would be futile.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;I.
Judi ...

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